704 F.3d 817 (10th Cir. 2013), 10-6148, Littlejohn v. Trammell

Docket Nº:10-6148.
Citation:704 F.3d 817
Opinion Judge:HOLMES, Circuit Judge.
Party Name:Emmanuel LITTLEJOHN, Petitioner-Appellant, v. Anita TRAMMELL, Interim Warden, Oklahoma State Penitentiary,[*] Respondent-Appellee.
Attorney:Randy A. Bauman, Assistant Federal Public Defender (Shelly R. Fears, Assistant Federal Public Defender, with him on the brief), Oklahoma City, OK, for Petitioner-Appellant. Robert Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General, with him on the brief), Office of the Attor...
Judge Panel:Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. TYMKOVICH, J., concurring and dissenting in part.
Case Date:January 07, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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704 F.3d 817 (10th Cir. 2013)

Emmanuel LITTLEJOHN, Petitioner-Appellant,

v.

Anita TRAMMELL, Interim Warden, Oklahoma State Penitentiary, [*] Respondent-Appellee.

No. 10-6148.

United States Court of Appeals, Tenth Circuit.

January 7, 2013

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Randy A. Bauman, Assistant Federal Public Defender (Shelly R. Fears, Assistant Federal Public Defender, with him on the brief), Oklahoma City, OK, for Petitioner-Appellant.

Robert Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General, with him on the brief), Office of the Attorney General for the State of Oklahoma, Oklahoma City, OK, for Respondent-Appellee.

Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Emmanuel Littlejohn was convicted of two robbery-related charges and a charge of first-degree murder, arising from his role in a 1992 robbery of a Root-N-Scoot convenience store in Oklahoma City. He received extended prison sentences on the robbery charges and a death sentence on the murder charge.

After a long procedural journey through the Oklahoma courts, Mr. Littlejohn filed a Petition for a Writ of Habeas Corpus, seeking relief under 28 U.S.C. § 2254, claiming (relevantly) that his murder conviction and death sentence were obtained in violation of his constitutional rights. The district court denied all relief and Mr. Littlejohn now appeals on multiple grounds. We affirm the district court's judgment on all grounds except for Mr. Littlejohn's claims of ineffective assistance of counsel at the penalty phase and cumulative error. As to the ineffective-assistance claim, we reverse the judgment and remand the case to the district court, with directions to conduct an evidentiary hearing and any further appropriate proceedings consistent with this opinion. Additionally, because the resolution of Mr. Littlejohn's cumulative-error claim may be affected by the district court's determination of his ineffective-assistance claim, we decline to address the merits of Mr. Littlejohn's contentions concerning cumulative error. Instead, we direct the district court to vacate that portion of its judgment upon remand and to consider the cumulative-error claim afresh.

I. Background and Procedural History

The facts are largely undisputed. On June 19, 1992, Mr. Littlejohn and Glenn Bethany robbed a Root-N-Scoot convenience store in Oklahoma City. At the time of the robbery, three individuals were working at the store, one of whom was Kenneth Meers. As the robbery was wrapping up, and Mr. Littlejohn was leaving the store, a shot was fired. The shot struck Mr. Meers in the face, ending his life. The evidence was conflicting concerning the source of the shot, and Mr. Littlejohn maintained that he did not fire it.

In November 1994, Mr. Littlejohn was charged and convicted by a jury of robbery

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with a firearm, after conviction of two or more felonies (Count One); murder in the first degree (Count Two); 1 and conspiracy to commit robbery with firearms, after conviction of two or more felonies (Count Three). At sentencing, the jury found three aggravating circumstances under Oklahoma law: (1) that Mr. Littlejohn had been previously convicted of violent felonies; (2) that he knowingly created a great risk of death to more than one person; and (3) that he posed a " continuing threat" to society. See Okla. Stat. tit. 21 § 701.12. His punishment was originally set at 300 and 99 years' imprisonment on Counts One and Three, respectively, and death on Count Two. Mr. Littlejohn appealed his conviction, and while the appeal was pending, the Supreme Court decided Cooper v. Oklahoma, 517 U.S. 348, 355-56, 368-69, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), which found unconstitutional Oklahoma's rule requiring a defendant bear the burden of proof by clear and convincing evidence that he is incompetent to stand trial. The Oklahoma Court of Criminal Appeals (" OCCA" ), in light of Cooper and the fact that Mr. Littlejohn had previously challenged his competency to stand trial, ordered the state trial court, if feasible, to " conduct a retrospective competency hearing utilizing the preponderance of the evidence standard." R., Vol. 1, pt. II, at 207 (Dist. Ct. Mem. Op., filed May 27, 2010). A jury later found that Mr. Littlejohn had not proven by a preponderance of the evidence that he was incompetent to stand trial in 1994. Mr. Littlejohn then filed another appeal, raising averments of error as to the competency hearings, the guilt phase of trial, and sentencing.

The OCCA denied Mr. Littlejohn relief on his claims of error relating to the retrospective competency hearings and the guilt phase. See Littlejohn v. State (Littlejohn I), 989 P.2d 901, 903-10 (Okla.Crim.App.1998). However, the court found error in the imposition of the death sentence. See id. at 910-12. Specifically, it held that admission of testimony suggesting that Mr. Littlejohn confessed to not only killing Mr. Meers, but also to an unrelated murder, amounted to constitutional error because the confession was uncorroborated by competent evidence, harmfully contributing to the jury's finding of the continuing-threat aggravator. See id. at 910-11. Moreover, it concluded that there was insufficient evidence that Mr. Littlejohn created a " great risk of death" to more than one person, see Okla. Stat. tit. 21 § 701.12(2), further undermining the second of the three aggravating circumstances that led to his death sentence, see Littlejohn I, 989 P.2d at 911-12. The court remanded the matter for resentencing in light of the fact that " [o]ver ninety percent of the aggravating evidence ... in th[e] case was ... [still] admissible." Id. at 912.

Mr. Littlejohn's resentencing trial began on October 30, 2000. He again received a death sentence, based this time on two aggravating circumstances— a previous conviction of a felony involving the use or threat of violence to the person and the continuing-threat aggravator. R., Vol. 1, pt. II, at 208; see also Littlejohn v. State (Littlejohn II), 85 P.3d 287, 290-91 (Okla.Crim.App.2004). He appealed, but the OCCA affirmed his sentence. See Littlejohn II, 85 P.3d at 290-91, 303. The Supreme Court denied Mr. Littlejohn's petition for certiorari in October of 2004. See Littlejohn v. Oklahoma, 543 U.S. 947, 125 S.Ct. 358, 160 L.Ed.2d 261 (2004). Mr.

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Littlejohn filed an application for post-conviction relief in Oklahoma state court, but was unsuccessful.

Mr. Littlejohn then sought federal habeas relief on February 25, 2005. He raised fourteen claims. See R., Vol. 1, pt. I, at 10-12, 38-150 (Pet. for Writ of Habeas Corpus, filed Sept. 30, 2005). The district court considered his petition, and denied relief on all grounds on May 27, 2010. However, it granted a certificate of appealability (" COA" ) to appeal its decision on six claims:

1. The prosecution violated Mr. Littlejohn's due process rights by presenting inconsistent theories as to who fired the fatal shot;

2. The prosecution failed to provide adequate notice of certain aggravation evidence;

3. The prosecution improperly presented a transcript of two witnesses who testified at the 1994 trial in abstentia in violation of Mr. Littlejohn's confrontation rights;

4. The prosecution engaged in misconduct in violation of Mr. Littlejohn's constitutional rights;

5. Mr. Littlejohn was prejudiced by counsel's failure to investigate and present evidence that he has brain damage; 2 and

6. Cumulative error.

See id., pt. II, at 301 (COA, filed July 6, 2010). Mr. Littlejohn now appeals, raising eight issues, including the six for which the district court granted the COA. In addition to the six claims, he challenges the district court's decision to deny habeas relief on his claim that the sentencing judge improperly instructed (and misled) the jury on the meaning of " life without the possibility of parole" as an alternative to the death penalty under Oklahoma law. Further, he contends that the district court wrongly rejected his claim that his rights were violated by virtue of the trial court's decision to " allow[ ] the jury to hear [his] previously recorded testimony" from the 1994 trial. Aplee. Br. at 3. We granted COAs on these two issues. Consequently, we have jurisdiction to consider the entirety of Mr. Littlejohn's habeas appeal. See Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir.2009).

II. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ) circumscribes our review of claims adjudicated on the merits in state court proceedings. Under AEDPA, a petitioner is entitled to federal habeas relief on a claim only if he can establish that the state court's adjudication of the claim on the merits (1) " resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law" ; or (2) " resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). The AEDPA standard is " highly deferential ... [and] demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)) (internal quotation marks omitted).

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In applying the legal inquiry under § 2254(d)(1), we ask at the threshold " whether there exists clearly established federal law, an inquiry that focuses exclusively on holdings of the Supreme Court." Hooks v. Workman (Victor Hooks), 689 F.3d 1148, 1163 (10th Cir.2012). " The absence of clearly established federal law is dispositive under § 2254(d)(1)." House v. Hatch, ...

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